Q&A By John T. Syrtash, Associate,
Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 38 years
1. Call the Police. Explain the urgency of the abduction and give as much information as needed. Amber alerts are now being made to every cell phone. An Amber Alert is issued when a child is missing or abducted, and the police fear that the life or health of the child is in imminent danger. The success rate has been very high in the jurisdictions where they are used, despite the loud complaints of being woken up in the middle of the night.
2. So, in what situations is an alert not issued involving children? It’s common for the Police not to “get involved” if a domestic dispute has triggered the disappearance of a child, particularly when the parent knows where to find the child. Recently, an Ontario mother left her home with two young girls “on vacation” to the United States but failed to return. The husband knew where the children were. When local police were phoning the mother, she complained of the father’s alleged physical and verbal abuse. In such situations, a parent should turn to a lawyer with experience in child abductions.
3. A parent left behind can apply to any family law Court in Canada on an emergency basis and without notice to the other parent, for temporary custody, the child’s return, and police enforcement. (The exception is where the “abducting” parent has already obtained a temporary emergency court Order giving him/her sole custody.) Typically, the Court will then also order every police department where the child might be to retrieve the child. Once the child is recovered, the abducting parent is served with the Order and an Application for custody and other relief, with a return date of no more than 7 days to hear his/her side of the reason for leaving and the parenting issues involved.
4. There is a danger of bringing such an emergency motion without notice. If the parent fails to recite facts that are embarrassing to the parent applying, then when a review of the “without notice” Order comes before the Court a few days later, it may set aside its’ own Order. Recently a Newmarket Ontario family law Judge set aside his own custody Order within three days after he made it. Why? Well, when initially applying for such an Order, the parent “forgot” to mention that he/she was a recovering cocaine addict who had a lengthy history of drug abuse in the child’s presence. So, when applying for such an Order, make sure that the evidence you provide to retrieve an abducted child also informs the Judge about the worst things about yourself that the other parent may allege. Even if you don’t believe these allegations are entirely accurate, you can always explain your response to such allegations, but you must mention them or any illnesses or special needs the child may have.
5. If your child has been abducted into the United States, most provinces there are special procedures. In Ontario, Judges can grant custody to a child and his/her return with police enforcement. Then if the parent “left behind” knows where the child is located, then his lawyer will courier a certified copy of the Ontario Order to a competent family law lawyer in the State where the child has been taken. That lawyer can then register the Ontario Order in family law Court and, presto, it becomes an Order of that State. The police of that State will subsequently enforce the Order virtually anywhere in the United States under American law under something called the Uniform Child Custody Jurisdiction and Enforcement Act.
6. If the child is abducted to another Province, the same procedure can be followed, i.e. obtain an emergency Custody Order with police enforcement and retain a lawyer in that Province to have it registered in its Court, with the enforcement of the local police.
7. If the child is abducted to a country that has a treaty with Canada for the return of abducted children, then your lawyer will begin enforcement of that treaty by notifying a Province’s office that processes such foreign abduction claims under the Hague Convention for the Civil Aspects of International Child Abduction. In Ontario, you or your lawyer would contact the Ministry of the Attorney General, Central Authority for Ontario for the Civil Aspects of International Child Abduction, P.O. Box 600, Steeles West Post Office Toronto, ON M3J 0K8.Tel.: 416-240-2411, Fax: 416-240-2411. The Courts of some States honour this Convention more strictly than others. The worst countries that fail to comply with the treaty they signed are as follows: Argentina, Bahamas, Brazil, China, Dominican Republic, Ecuador India, Japan, Jordan, Morocco, Peru, and the United Arab Emirates. However, Israel is a signatory and very compliant with the Convention. A complete list of Hague Convention countries can be found at http://worldpopulationreview.com/countries/hague-convention-countries/ It is also imperative to retain a competent family law lawyer with a great deal of experience in child abduction in the foreign country where the child was taken. In my experience, the legal fees for both in and outside of Canada together will cost between $25,000-$35,000. Be careful: any application under the Hague Convention must be filed within one year of the child abduction.
8. Where a child is abducted to a country that is not a member of the Hague Convention, your lawyer will obtain an Order to return the child from a local Court and send a certified copy to a lawyer who is highly competent to prosecute such claims in that country. The problem is that when you are applying to a country whose Judges are very jealous of children, that may also be citizens. In certain cases where corruption is rife, bribes are not unusual Such Judges may not be as cooperative as they would in Canada. For instance, if the child is removed to India, a non-signatory, the network and skill of the Indian lawyer retained, and the bias of the Judge presiding will make all the difference.
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
GARFIN ZEIDENBERG LLP
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992
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